As I was settling in on my first day at Marler Clark, Bill nonchalantly gave me my first assignment: “Hey, I need you to write up a petition urging the U.S. Department of Agriculture to designate Salmonella as an adulterant in all meat and poultry products sold in the U.S.” Instantly I felt a surge of nerves. As the nerves subsided, imposter syndrome began to rear its head. Although I had two years of college-level food science courses under my belt, my experience relevant to the law firm’s work was limited to a single food safety and sanitation class. But determined to give the assignment my best effort, and with Bill’s assurance that I would have access to experts in the field, I set out on a three-month petition-drafting journey.

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Long story short, that is how, one summer afternoon, as a slightly hesitant but determined intern, I found myself in the charming and eclectic town of Port Townsend, Washington. There, I sat in a dimly lit bar, joined by a scientist and two seasoned lawyers, all of us engrossed in the thorough review of my 61-page draft. That is how Marler Clark’s Salmonella petition (as we now fondly refer to it) came to fruition. 

More than three years later, on April 25, 2023, the USDA released a proposed determination to declare Salmonella an adulterant in breaded stuffed raw chicken products — a first step in the right direction. This proposal was supported by various factors, one being the investigation of 14 Salmonella outbreaks and about 200 illnesses linked to these products since 1998.

But while the USDA’s proposal is encouraging, it remains a small step in the face of a much larger issue. According to the CDC, Salmonella bacteria cause a staggering 1.35 million illnesses, resulting in 26,500 hospitalizations and 420 deaths in the United States every year. This data highlights the urgency of implementing more substantial and effective measures to address this serious problem.

The days of interning at Marler Clark are behind me, as I now proudly serve as an attorney. Yet four years have passed since the drafting and submission of Marler Clark’s Salmonella petition, and regrettably, not much has changed. Nevertheless, Marler Clark’s relentless pursuit for a safer food supply will persist, as we continue to advocate for the designation of Salmonella as an adulterant in meat and poultry products.

The experts guiding me were none other than Carl Custer, an esteemed scientist, and former USDA inspector, alongside Denis Stearns and Bill Marler, two of Marler Clark’s founding partners with a combined 60 years of experience in foodborne illness litigation and advocacy. I was in good hands.

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As of Nov. 9, 2021, health officials in Roanoke, Virginia, confirmed a total of 50 primary cases and two secondary cases of hepatitis A linked to a hepatitis A positive food service employee who worked at three Famous Anthony’s restaurants. Of those 52 cases, there have been at least 31 hospitalizations with one liver transplant, and unfortunately, three deaths. 

Hepatitis A is a highly contagious disease that attacks the liver. It is also the only vaccine-preventable foodborne illness. Hepatitis A vaccines are available and given out nationwide for free by local health departments, or at a cost of less than $100. 

So why aren’t all food workers vaccinated against hepatitis A? Your guess is as good as mine. According to the Centers for Disease Control and Prevention (CDC), hepatitis A vaccines are safe and effective at preventing hepatitis A infections. Severe allergic reactions following vaccination are rare, and the common side effects are usually mild and last 1-2 days. 

Had the food service employee who exposed patrons of three Famous Anthony’s restaurants been vaccinated, the Seattle law firm Marler Clark would not be representing 27 individuals in this outbreak and the families of two who died.  The cost to this restaurant will be in the tens of millions of dollars and will likely result in bankruptcy.

Here is what employers of food service employees and the CDC can do to prevent future illnesses, hospitalizations, and deaths.

Employer actions to prevent outbreaks of hepatitis A

Employers of food handlers can encourage their employees to get vaccinated and even mandate the hepatitis A vaccine. 

Could employers face potential liability if any of their vaccinated employees has an adverse reaction to the vaccine?

Most of the talk on this topic is quite recent and related to the COVID-19 vaccine. But the laws relating to the COVID-19 vaccine are also likely applicable to other vaccines, including the hepatitis A vaccine.

An employer-mandated vaccine is considered a part of work, and thus, under most state laws, an adverse reaction would be covered by workers’ compensation. But, although injuries and illnesses from mandated vaccines are likely covered by the employer’s workers’ compensation policy, employers should check with their individual carriers.

When a vaccine is encouraged, but not mandated, however, coverage under workers’ compensation policies may not be available because any adverse reaction is unlikely to arise out of the employment. That does not necessarily mean that the employer would be held liable for any resulting injuries, however. According to the Society for Human Resource Management, “even if vaccination injury claims are not considered covered under workers’ compensation laws, an employee would need to demonstrate negligence on the part of the employer(.) . . . If FDA-approved vaccinations are administered by a third-party provider, it is difficult to see how a plaintiff would demonstrate such negligence.” 

Furthermore, there are no-fault alternatives to the traditional tort system, such as the National Vaccine Injury Compensation Program, that provide compensation to people found to be injured by certain vaccines, including the hepatitis A vaccine.

What are the CDC’s recommendations on vaccinating food workers?

For years, CDC officials have said that food handlers did not need hepatitis A vaccinations because outbreaks are rare and food workers are not at increased risk of infection because of their jobs. They pointed to plummeting rates of hepatitis A infections since the introduction in 1996 of a safe and effective vaccine.

But CDC missed the point. Granted, food service workers are not more at risk of getting hepatitis A because of their occupation, but they are a risk for spreading it to customers. Moreover, although the incidence of hepatitis A has decreased, reported cases have increased dramatically since 2016, when large person-to-person outbreaks began occurring.

Source: CDC

It’s about time CDC changes its recommendations. Aside from the cost in human health and life, an outbreak of hepatitis A can be devastating for a food establishment in terms of liability and public relations. Just like healthcare workers need to be immunized against diseases they might encounter or transmit to their patients, food handlers need to be protected from being vectors of what can be a serious viral infection that is transmitted easily through food and drink.

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The Consumer Federation of America (CFA) presented an installment of its Virtual National Policy Conference series, titled “A New Day at USDA for Food Safety?” on Tuesday.

Speakers included Dr. Patricia Griffin, chief of the Enteric Diseases Epidemiology Branch at the Centers for Disease Control and Prevention; Sarah Sorscher, deputy director of regulatory affairs at the Center for Science in the Public Interest (CSPI); and Mike Robach, CEO of the Robach Group and former vice president of corporate food safety at Cargill.

The name Mike Robach sounded familiar, so I ran a quick search of my desktop and stumbled upon Marler Clark’s 2020 Salmonella Petition. As mentioned in the Petition, Robach, in his former role at Cargill, partnered with The Pew Charitable Trusts in 2014 to develop a set of recommendations to “improve the food safety oversight system for meat and poultry” and to “transform the current system into one that is more science and risk-based.” The project came after Cargill was implicated in Salmonella outbreaks in 2009, 2011 and 2012. The executive summary of the 2014 stakeholders’ meeting states, “Cargill Inc. and the Pew Charitable Trusts identified the following reasons for believing that the time was ripe for this initiative: 

1. Public health-based: While there has been some progress, meat and poultry products remain significant vehicles for foodborne illnesses in the United States;
2. Science-based: The inspection system developed more than 100 years ago does not employ the most science-based means to protect consumers from pathogenic contamination; and
3. Fiscal: Taxpayers spend $1 billion each year on an inspection system that cannot effectively assure the desirable level of safety.”

Now, seven years after this initiative, Robach, Sorscher and Griffin expressed similar concerns at the CFA Conference. They say USDA’s meat and poultry inspections system, which was implemented to combat animal disease, not to ensure the safety of the nation’s food supply, more than a century ago, is outdated and “archaic.” They also say chicken-associated Salmonella and Campylobacter are now responsible for an estimated 635,000 illnesses each year in the United States. Salmonella remains the leading cause of bacterial foodborne illness in the United States, followed by Campylobacter, with the incidence of Salmonella illnesses remaining virtually unchanged in the past 20 years. 

Each panelist also offered potential solutions. Robach recommended that the USDA enhance the role of risk-assessment in its oversight system — possibly by creating a new, independent risk-assessment agency — and update its current inspections program to account for these varying risks rather than keep its current “one-size-fits-all” program. He also suggested the agency implement preharvest interventions and update the labels on meat and poultry products to reflect safe handling practices. 

Griffin proposed a multi-pronged approach involving “farm measures,” such as hygiene and vaccination; “slaughterhouse methods,” such as modernized performance standards; and “retail methods,” such as buying agreements and industry standards. She said France and the United Kingdom have markedly decreased Salmonella infections by using vaccination of poultry, targeting of particular serotypes, hygiene measures on farms, legislation and investigation. Similarly, Sorscher advocated for “enforceable, risk-based standards that target Salmonella types of greatest public health concern and Campylobacter.” 

On Jan. 19, 2020, Marler Clark LLP submitted the above-mentioned Salmonella Petition, on behalf of CFA and others, requesting that the USDA’s Food Safety and Inspection Service declare the following “Outbreak Serotypes,” considered to be serotypes of public health concern, to be adulterants in meat and poultry products: Salmonella Agona, Anatum, Berta, Blockely, Braenderup, Derby, Dublin, Enteritidis, Hadar, Heidelberg, I 4,[5],12:i:-, Infantis, Javiana, Litchfield, Mbandaka, Mississippi, Montevideo, Muenchen, Newport, Oranienburg, Panama, Poona, Reading, Saintpaul, Sandiego, Schwarzengrund, Senftenberg, Stanley, Thompson, Typhi and Typhimurium.

About the author: Ilana Korchia is a law clerk at the Marler Clark law firm in Seattle. She is a second-year law student at Seattle University School of Law. Korchia earned a bachelor’s degree in food science from the University of Florida in 2019. She has previous experience working as a public affairs intern for the U.S. Food and Drug Administration and as a laboratory research assistant for the University of Florida.

Editor’s note: Bill Marler of Marler Clark LLP is publisher of Food Safety News.

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For poultry products, including broiler and turkey carcasses, chicken parts, and not ready-to-eat comminuted products, the FSIS uses a “moving window” approach. The results are used to determine whether or not an establishment meets the performance standard on a continuous basis. First, the FSIS evaluates samples taken within an initial 52-week period, which is not necessarily a calendar year. Then, every week, the 52-week period “moves up” one week, adding a new week’s testing result and removing the oldest week’s results.

A test is considered positive when any Salmonella organisms are found. Federal law allows establishments to have a maximum of 9.8 percent of Salmonella-positive broiler carcass samples, 7.1 percent of turkey carcass samples, 25.0 percent of comminuted chicken samples, 13.5 percent of comminuted turkey samples, and 15.4 percent of chicken parts before they fail to meet the performance standards.

For raw ground beef products, the FSIS uses a vastly different approach. Under the existing sampling program, FSIS determines whether establishments meet the Salmonella standard by testing randomly selected product samples using a risk-based, three-category establishment classification system. The maximum number of Salmonella-positive samples allowed for ground beef is 5 of 53,  or 7.5 percent.

However, some beef performance standards may change soon.

On Oct. 28, 2019, the FSIS published a notice in the Federal Register detailing proposed changes to the Salmonella performance standards for raw ground beef and beef manufacturing trimmings, the primary component of raw ground beef. Specifically, the FSIS seeks to:

• implement a 52-week “moving window” approach; and
• collect and analyze at least 48 samples per year for each establishment producing greater than 50,000 pounds of ground beef or beef manufacturing trimmings per day.

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